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Appellate Court Date: 2021.04.07
11:20:36 -05'00'
Florez v. Northshore University Healthsystem, 2020 IL App (1st) 190465
Appellate Court JULIEN FLOREZ, a Minor, by His Parents and Next of Friends,
Caption Aimee Florez and David Florez, Plaintiff-Appellee, v.
NORTHSHORE UNIVERSITY HEALTHSYSTEM, d/b/a Evanston
Hospital; ARMIN MICHAEL DRACHLER, M.D.; NORTHSHORE
PHYSICIANS GROUP, LLC, d/b/a Northshore Medical Group;
ELIZA MEADE, M.D.; JENNIFER LESKO, M.D.; and LISA
WEGRZYN, R.N., Defendants-Appellants.
District & No. First District, Sixth Division
No. 1-19-0465
Filed August 21, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 14-L-13348; the
Review Hon. Kay M. Hanlon, and the Hon. Thomas Donnelly, Judges,
presiding.
Judgment Reversed and remanded.
Counsel on J. Timothy Eaton and Jonathan B. Amarilio, of Taft Stettinius &
Appeal Hollister LLP, of Chicago, for appellants.
Patrick A. Salvi II, Matthew L. Williams, Brian L. Salvi, and Heidi L.
Wickstrom, of Salvi, Schostok & Pritchard P.C., of Chicago, and
Robert G. Black, of Law Office of Robert G. Black, P.C., of
Naperville, for appellee.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Mikva and Justice Cunningham concurred in the
judgment and opinion.
OPINION
¶1 Defendants Northshore University Healthsystem, d/b/a Evanston Hospital; Armin Michael
Drachler, M.D.; Northshore Physicians Group, LLC, d/b/a Northshore Medical Group; Eliza
Meade, M.D.; Jennifer Lesko, M.D.; and Lisa Wegrzyn, R.N. (collectively defendants) appeal
the judgment of $50.3 million entered in favor of plaintiff after a jury trial. On appeal,
defendants contend (1) the trial court erred in striking defendants’ supplemental disclosures of
their previously disclosed expert witnesses, where the disclosures were made in response to
plaintiff’s supplemental filing, (2) the trial court abused its discretion in excluding all evidence
of Julien Florez’s autism diagnosis, and (3) opposing counsel’s remarks during closing
argument for the jury to “make a statement” concerning the preciousness of children’s lives
constituted reversible error. For the following reasons, we reverse and remand for a new trial.
¶2 I. JURISDICTION
¶3 On October 9, 2018, after a jury trial, the trial court entered judgment on the verdict in
favor of plaintiff. Defendants filed a motion for a new trial, which the trial court denied on
February 7, 2019. Defendants filed their notice of appeal on March 6, 2019. Accordingly, this
court has jurisdiction pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule
303 (eff. July 1, 2017), governing appeals from final judgments entered below.
¶4 II. BACKGROUND
¶5 A. Pretrial
¶6 Plaintiff filed a complaint against defendants, alleging medical negligence regarding the
birth of Julien on March 22, 2009. Defendants responded, and discovery commenced with an
original trial date of May 15, 2018. On March 16, 2018, 59 days before trial, plaintiff sought
to disclose a new witness, Dr. Allecia Wilson, and to supplement disclosures provided by
various expert witnesses. The trial court granted plaintiff’s request over defendants’ objection.
¶7 On May 10, 2018, defendants received Julien’s medical records from treatment in
Michigan spanning a period of six months. Defendants moved to continue the trial date, but
the court denied the motion. The case was assigned to another judge for trial, but that judge
had a scheduling conflict. She informed the parties that she could either continue the trial or
return it for reassignment to another judge. She indicated that if she retained the case, she
would allow defendants to take limited discovery of the newly disclosed medical records.
Defendants chose to have the case reassigned, and the trial date was moved to September 18,
2018.
¶8 On July 25, 2018, 56 days before trial, plaintiff supplemented his answers to written
discovery with “a copy of the June 25, 2018 Psychological Evaluation for Julien Florez from
the Center for Neuropsychology and Behavioral Health.” The evaluation was conducted by Dr.
Crystal Young, one of Julien’s treaters in Michigan. Dr. Young’s report stated that Julien was
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referred to her for a cognitive assessment and “evaluation of possible Autism Spectrum
Disorder (ASD).” Dr. Young performed five tests: Wechsler Intelligence Scale for Children,
Peabody Picture Vocabulary Test, Autism Diagnostic Observation Schedule, Developmental
Disability—Children’s Global Assessment Scale, and Vineland Adaptive Behavior Scales. She
also conducted a clinical interview and reviewed records.
¶9 Dr. Young concluded that the “[t]est results are suggestive of Moderate Intellectual
Disability” and most individuals in this category “will not exceed an early elementary level of
acquired academic skill development.” She noted that “Mrs. Florez’[s] description of Julien’s
current ability to recognize some printed words, add, and count to 100, also appears broadly
consistent with these expectations.” She further concluded that “[f]rom a social and emotional
perspective, Julien meets full diagnostic criteria for Autism Spectrum Disorder.” She stated in
her report that ASD “is a childhood developmental disorder characterized by severe and
pervasive impairment in reciprocal social interaction skills and communication as well as the
presence of restricted repetitive and/or stereotyped patterns of behavior, interests, and
activities.”
¶ 10 Defendants forwarded the report to their experts and filed their supplemental disclosures
on August 9, 2018. Defendants’ experts opined that Julien’s autism diagnosis supported the
conclusion that his disabilities resulted from a chronic condition rather than an acute injury
occurring at birth. Defendants also sought to supplement its answers to disclose Dr. Young as
a witness. Plaintiff moved to strike the supplemental disclosures, arguing that defendants were
“trying to inject this new issue into the case.” They also argued that the disclosures were
untimely, since they were filed less than 60 days before trial.
¶ 11 The motion judge agreed with plaintiff, finding that Illinois Supreme Court Rule 218(c)
(eff. July 1, 2014) requires all discovery to be completed no later than 60 days before trial. On
the day of trial, defendants moved to continue the trial to conduct additional discovery, and to
reinstate the supplemental disclosures stricken by the motion judge. The trial court denied the
motions. The court stated that it “checked the dates” and “didn’t hear anybody say something
that raised a red flag to me misrepresenting the dates.”
¶ 12 Plaintiff subsequently filed motion in limine No. 19 “barring any reference to autism” at
trial. Plaintiff’s motion stated that the record contained references to “a possibility of autism,”
and “[t]he term autism has also come up during the depositions of some treating physicians
and experts.” Plaintiff alleged that no witness would testify for either party that Julien is
autistic. Furthermore, “[n]one of plaintiffs’ or defendants’ experts have offered an opinion—
neither in a discovery deposition nor Rule 213 disclosure—diagnosing Julien Florez with
autism.” See Ill. S. Ct. R. 213 (eff. Jan. 1, 2018). Plaintiff alleged that “autism implies a genetic
component to the brain dysfunction,” and no expert testified that Julien has a genetic condition
that led to his brain injury. Therefore, autism is irrelevant to the issues at trial and mentioning
autism would only serve to confuse the jury. The trial court granted plaintiff’s motion in limine.
¶ 13 B. Trial
¶ 14 Testimony at trial established that Aimee was admitted to Evanston Hospital on March 22,
2009, five days past her due date. All tests and ultrasounds performed prior to her admission
registered normal. Dr. Jennifer Lesko examined Aimee at 12:24 p.m.; as part of the exam, she
observed the fetal heart rate as indicated by the fetal monitor. Dr. Lesko explained that the fetal
heart rate will accelerate and decelerate. Although accelerations are generally reassuring, there
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are two types of decelerations worth noting: variable decelerations, in which the drop in heart
rate lasts less than 30 seconds and has no temporal relationship to uterine contractions, and
prolonged decelerations, where the baby’s heart rate drops for more than two minutes before
returning to baseline. The fetal heart rate is also monitored for fluctuation or variability.
Moderate variability, defined as the fluctuation of the heart rate of more than 6 but less than
25 beats per minute, is a reassuring sign for fetal health. Conversely, where variability is
minimal or absent, this may indicate a lack of oxygen to the baby.
¶ 15 At around 2:40 p.m., they broke Aimee’s “bag of waters to help with getting contractions
to be a little bit more frequent.” Dr. Lesko stated that “the abrupt release of water *** can
sometimes cause the baby to have a deceleration.” At 2:45 p.m., the monitor showed the baby
experienced a prolonged deceleration. Dr. Lesko testified that the deceleration was consistent
with the breaking of the bag of waters. At 3:45 p.m., Aimee was given an epidural. Dr. Lesko
agreed that the prolonged deceleration noted at this time was “consistent with when her
epidural was being placed.” During her attendance of Aimee, Dr. Lesko noted variable
decelerations in the baby’s heart rate but it always returned to baseline. She assessed the
decelerations as moderate.
¶ 16 Around 5:30 p.m., Aimee had not made significant progress in labor, and Dr. Lesko
considered administering Pitocin. Pitocin increases the strength and frequency of contractions
to achieve vaginal delivery. In her notes, Dr. Lesko wrote that she did not start Aimee on
Pitocin because “given [her] remoteness from delivery and frequency of prolonged decels,
[she] may not make it to have the normal spontaneous vaginal delivery. Patient aware that she
may require a c-section.” Dr. Lesko testified that although she did not recommend using
Pitocin at the time, she wrote that she “would consider it.” Around this time, she communicated
with Dr. Drachler, who was taking over Aimee’s care. In her notes, she wrote that he was
“aware and in house.”
¶ 17 Dr. Drachler ordered that Pitocin be administered “slowly” in order to augment Aimee’s
labor. Nurse Wegrzyn testified that at 5:32 p.m., she began administering two milliunits of
Pitocin to Aimee. At 6:25 p.m., Dr. Drachler formed a care plan to perform a C-section if one
of the following events occurred: (1) variability in the baby’s heart rate changed from moderate
to minimal for more than 30 minutes or (2) if decelerations recurred. By 6:30 p.m., nurse
Wegrzyn increased the dose of Pitocin to eight milliunits. After 7 p.m., the fetal monitor strip
showed a prolonged deceleration. Dr. Drachler ordered a C-section at 9:40 p.m. and Julien was
delivered at 10:35 p.m. Dr. Drachler testified that he monitored Julien’s heart rate throughout
the night and noted moderate variability. He did not believe that the monitor showed minimal
variability “until the end.”
¶ 18 Nurse Wegrzyn testified that she attended to Aimee most of the day and through the time
of her delivery. She noted the variable decelerations of the baby’s heart rate, and she testified
that the prolonged decelerations she observed would be concerning “at that moment,” but
overall she was not worried “[b]ecause the variability is still moderate.” Nurse Wegrzyn stated
that “[v]ariables are not super concerning to us. It’s—I mean, a baby could roll on a cord.” She
would not bring all repetitive variable decelerations to the doctor’s attention “because we see
those all the time.” However, she stated that a prolonged deceleration “is different.”
¶ 19 Nurse Wegrzyn testified that she noted minimal variability at 9:10 p.m. and the baby’s
heart rate never improved. They tried certain maneuvers to assist the baby’s heart rate,
including moving the mother’s positioning, administering oxygen, and ceasing the use of
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Pitocin. At 9:40 p.m., Dr. Drachler recommended a C-section. Nurse Wegrzyn stated that fetal
monitoring ceased at 10:11 p.m. up to Julien’s delivery. She was in the operating room when
Julien was born and noticed meconium-stained fluid. Previously, she had not observed any
fluid that was stained. At birth, Julien’s Apgar score was “1,” which she agreed was “bad.”
¶ 20 Dr. Drachler testified that when he was born, Julien was “in bad shape.” He was lifeless
and blue, and his heart had to be pumped to get circulation to his brain. Bradycardia, or an
abnormally low heart rate, was present. Dr. Dalia Feltman, a neonatologist, handled Julien’s
resuscitation. A tube was inserted in his airway and a ventilator assisted his breathing for the
first 55 minutes of Julien’s life. Dr. Feltman testified that lab results showed the presence of
metabolic acidosis, which is one criteria to initiate body cooling. Body cooling is performed
by placing the baby on a cooling blanket in order to lower the body temperature. Dr. Feltman
testified that cooling the baby’s overall temperature “is supposed to slow that further [brain]
injury from happening.”
¶ 21 Dr. Feltman stated that before subjecting Julien to body cooling, she also observed his
physical condition. She explained that when the brain does not appear to be “acting normal” at
birth, it could be a sign of hypoxic ischemic encephalopathy, or HIE. Julien exhibited signs of
brain dysfunction, such as lethargy and decreased spontaneous activity, so body cooling was
administered. Within five hours of his birth, Julien showed signs of seizure activity, and he
was given phenobarbital, an antiseizure medication.
¶ 22 1. Plaintiff’s Expert Witnesses
¶ 23 Plaintiff presented nurse Kathleen Lagana on the issue of whether nurse Wegrzyn complied
with the standard of care in attending to Aimee prior to Julien’s birth. Specifically, nurse
Lagana opined about the use of Pitocin. She explained that contractions reduce the oxygen
flow to the baby, and contractions that are too frequent do not allow the placenta enough time
to replenish the oxygen reserves. As a result, oxygen flow to the baby is reduced. Nurse Lagana
stated that Aimee should not have received Pitocin, given the decelerations observed
throughout the afternoon. They needed to figure out what was causing the decelerations, and
they did not want to “make it worse by making stronger contractions or closer together
contractions.” The standard of care required nurse Wegrzyn to inform Dr. Drachler that Aimee
was not tolerating labor and that Pitocin was “contraindicated.” Nurse Lagana opined that
Pitocin caused an excessive contraction pattern in Aimee.
¶ 24 Dr. Martin Gubernick testified as plaintiff’s obstetrics expert. Dr. Gubernick reviewed the
fetal monitor strip and noted that following the administration of Pitocin, variability decreased
from moderate to minimal, and accelerations disappeared. The strip indicated a prolonged
deceleration at 7 p.m. Over the next two hours, before Dr. Drachler ordered a C-section, nurse
Wegrzyn documented repetitive decelerations. He noted that variability in the heart rate
remained minimal for three hours leading up to the C-section. Dr. Gubernick opined that Dr.
Drachler deviated from the standard of care when he started Pitocin and failed to discontinue
the drug when the fetal monitor strip showed a deterioration in the baby’s condition, failed to
communicate to Aimee the signs of fetal distress, and failed to recommend a C-section at least
two hours earlier.
¶ 25 Dr. Ronald Gabriel testified as an expert on brain injury. He noted that all measures of the
baby’s condition were normal when Aimee was admitted to the hospital. Bradycardia was
observed at 10:11 p.m., and it persisted “into at least the first five and probably approaching
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the first ten minutes of life.” Dr. Gabriel explained that HIE refers to a condition involving “an
abnormality of the brain” (encephalopathy), resulting from reduced oxygen in the blood
(hypoxia) and reduced blood flow to the organ (ischemia). He agreed that cooling Julien’s
body was the correct procedure to address HIE. Dr. Gabriel opined that Julien’s brain injury
occurred “sometime after *** 10:11 at night.” He came to that conclusion because Julien was
bradycardic at birth and the bradycardia resulted in his brain damage. As additional support
for his conclusion, Dr. Gabriel pointed to an EEG that showed Julien’s brain suffered ischemia
as evidenced by “bursts which is classic for acute lack of oxygen.” An MRI “showed an acute
injury to the brain diffuse particularly in the white matter.”
¶ 26 Dr. Gabriel also pointed to Julien’s present condition as support. Although Julien has
cerebral palsy, his “motor system” significantly benefitted from the cooling and he is much
better than he would have been without the cooling. “The cooling, however, did not have a
major impact on his intelligence or his language. *** He only has about 50 words now
approaching ten years of age and [he’s] barely understandable.” Dr. Gabriel concluded that
Julien’s brain injury occurred shortly before delivery through the first five plus minutes after
delivery.
¶ 27 Dr. Robert Zimmerman, a pediatric neuroradiology expert, testified that an MRI taken on
March 27, 2009, showed a hypoxic-ischemic injury of the brain. He opined that the injury
occurred near the time of birth due to the baby’s appearance at birth, and the swelling as shown
on the MRI. A hypoxic-ischemic injury occurring at birth causes damage to brain tissue, which
then swells. This swelling occurs during the acute phase of the injury and only remains visible
for five or six days.
¶ 28 Dr. Allecia Wilson testified as a placental pathologist. She reviewed Aimee’s placental
pathology slides and observed nothing to suggest the placenta contributed to Julien’s brain
injury. She stated that “the hallmark” of placental insufficiency is growth restriction in the
baby. The baby “will not have the proper weight, the proper length, and the proper head
circumference.” Since Julien’s measurements were normal, Dr. Wilson concluded that
Aimee’s placenta was “perfusing normally.” She did not believe that the weight ratio between
placenta and baby was abnormal, based on Julien’s head circumference, weight, and length.
¶ 29 Evidence presented at trial showed that Julien has global delays; exhibits poor strength,
balance, and coordination; and has significant speech and language deficits. He requires
physical, occupational, and speech therapy. Julien needs help with eating, getting dressed, and
for personal hygiene. He also requires 24-hour supervision. Dr. Gary Yarkony examined Julien
and developed a plan outlining his lifetime minimal care needs and costs of this care. The
present value of the costs of care ranged from $10,489,279 to $11,240,699. The latter amount
represented the cost if Julien attends a private school that includes therapy, as opposed to
attending public school and receiving outside therapy. Since Julien will not be able to work,
plaintiff’s vocational expert, David Gibson, concluded that his future lost earnings ranged from
$2,525,775 to $4,335,511.
¶ 30 2. Defendants’ Expert Witnesses
¶ 31 Nurse Marcia Patterson opined that nurse Wegrzyn met the standard of care for an
obstetrical nurse. She noted the tracings on the fetal monitor strip but disagreed that the
decelerations observed in the afternoon were concerning. Julien’s heart rate always returned to
baseline which indicated further monitoring rather than a C-section. Although several variable
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decelerations occurred that evening, Julien’s heart rate returned to the baseline, which
indicated moderate variability. She testified that a C-section was ordered because although the
baby’s heart rate showed moderate variability, Aimee’s labor was not progressing and a
prolonged deceleration occurred in the evening. Nurse Patterson also opined that the use of
Pitocin was appropriate here because Aimee needed assistance to move along her labor. She
stated that the amount of Pitocin administered was within standard practice, and it helped to
bring the rate of Aimee’s contractions under control. In reviewing the fetal heart tracings, nurse
Patterson did not find any indication of excessive contractions connected to the use of Pitocin.
¶ 32 Dr. Julie Jensen, an obstetrician and gynecologist, testified that Julien’s heart rate
throughout the afternoon was not concerning because it always returned to its baseline with
moderate variability. Furthermore, the decelerations correlated with routine procedures, such
as breaking the bag of waters, applying an epidural, and changing the mother’s position. She
stated that Julien’s condition was “very stable.” She opined that defendants properly monitored
the situation and took appropriate measures such as providing Aimee with oxygen, changing
her position, and increasing her intravenous fluids.
¶ 33 Dr. Jensen disagreed with Dr. Gubernick and nurse Lagana’s interpretations of the fetal
monitor tracings. She testified that the tracings showed a normal baseline with moderate
variability and that the heart rate did not drop to minimal variability until after the prolonged
deceleration at 9:24 p.m. She observed, however, that even then Julien’s heart rate returned to
baseline. Dr. Jensen also disagreed with plaintiff’s experts that Dr. Drachler should have
ordered a C-section prior to this prolonged deceleration because nothing on the strip supported
a reason to call for one. Dr. Jensen opined that Dr. Drachler complied with the standard of care
when he ordered the C-section at 9:30 p.m.
¶ 34 Dr. Alan Bedrick and Dr. Michael Scher testified as to the cause and timing of Julien’s
brain injury. Both stated that the tracings on a fetal monitor strip are only “one part of the
puzzle” in determining whether an HIE injury occurred at birth. Rather, “it’s critical to look at
the cord blood gases and the tracing together, and not just the tracing [by] itself.” Dr. Bedrick
testified that the examination of the cord blood gases did not support plaintiff’s theory that
Julien experienced minimal variability leading to bradycardia, which led to HIE injury at birth.
¶ 35 They also agreed that the evidence showed Julien was already significantly injured by
March 22, and nothing happened during labor that exacerbated the injury. Dr. Scher explained
that HIE can have both acute and chronic causes. In his opinion, Julien’s condition was chronic
due to the small size of the placenta which, as a result, could not supply Julien with sufficient
oxygen. He stated that the fetal-placenta ratio should be 5:1 or 6:1, but, in Julien’s case, it was
10:1, which indicated a big baby and that the “placenta was super small.” He believed Julien
suffered from chronic asphyxia in utero, which caused his brain damage. Although Julien
continued to grow, the placenta did not, and that caused injury to his brain, lungs, and heart
“over a long period of time in the womb.”
¶ 36 Dr. Bedrick testified that an echocardiogram showed the blood vessels in Julien’s lungs
were thickened and such a condition takes weeks or even months to develop. Julien’s inability
to breathe on his own at delivery, and his bradycardia, supported this conclusion because they
indicated that Julien’s brain and lungs were too damaged to make that transition. Dr. Scher
testified that the thickened blood vessels in Julien’s lungs were caused by lack of blood flow
and oxygen. The echocardiogram also showed that Julien suffered from severe arterial
hypertension, which thickens the heart muscles. The condition indicates that the heart is not
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pumping blood well. Dr. Scher testified that this thickening develops weeks before a baby is
born and does not occur soon after birth.
¶ 37 Both doctors testified that the fact Julien experienced seizures within five hours of birth
supported their conclusion that he did not suffer an acute hypoxic event shortly before birth.
Such seizures typically take 12 to 36 hours to develop after an injury. Since Julien had seizures
within five hours of delivery, it is more likely that the injury occurred prior to labor. Dr.
Bedrick also noted that Julien was limp when he was born, and if his neurological problem
resulted from something that happened shortly before his birth, he would be limp and “stay
limp.” In this case, however, Julien developed very rapid onset of hypertonia (high muscle
tone) within 24 hours of being born *** and that is much more consistent with a brain injurious
event occurring before.”
¶ 38 Dr. Edwina Popek testified about the condition of the placenta. She explained that one
umbilical vein takes oxygenated blood from the placenta to the fetus and two umbilical arteries
take deoxygenated blood and waste back to the placenta. She stated that there was evidence of
inflammation within the umbilical cord and “the only cause that we have is the presence of
meconium.” Meconium-laden macrophages found in the layers of the placenta meant that
“some time has gone by since the meconium got into the amniotic cavity.” The umbilical artery
also showed evidence of injury associated with exposure to meconium. Dr. Popek believed “it
takes approximately 16 hours of heavy exposure to meconium” to observe such an injury.
¶ 39 Dr. Popek also remarked on the size of the placenta in relation to Julien, noting that it was
small. She stated that babies can continue to grow with a small placenta because the organ has
about a 30% reserve capacity. The baby may be fine for a while, but then “the placenta doesn’t
have enough oomph to get the baby through those last stages of the pregnancy.”
¶ 40 Dr. Richard Towbin testified regarding the timing of Julien’s injury. Based on the MRI, he
determined that Julien’s injury must have occurred at least seven days earlier, between March
12 and March 20, 2009. He explained that there are three phases of brain injury. The acute
phase of the injury “is where the dominant feature is swelling.” The swelling peaks a few days
after the injury and, as it subsides, fluid takes its place. This second, subacute phase can last
for weeks or months. The last phase, chronic, is reached when these injury-related changes
end. Dr. Towbin testified that the MRI showed Julien’s brain was already transitioning from
the acute to subacute phase, which could not happen if he had been injured at or around his
birth. He disagreed with Dr. Zimmerman’s conclusion that, based on the MRI, Julien’s injury
occurred at the time of birth. Dr. Zimmerman’s opinion did not account for the fact that Julien
had been placed on a cooling blanket which slows the rate of damage to the brain.
¶ 41 Dr. Scott Hunter testified as an expert in the evaluation of children’s cognitive abilities and
their current and future needs. He reviewed Dr. Yarkony’s life care plan for Julien and Dr.
Gibson’s economic plan. He stated that it was too early to assume Julien would never be able
to live independently or be employable. He found that Julien’s nonverbal reasoning ability was
low/average, but with the proper interventions, Julien could have “areas of independence.” Dr.
Hunter believed that Dr. Yarkony’s opinion reflected “a worst-case scenario” for Julien.
¶ 42 Outside the presence of the jury, defendants made several offers of proof. Dr. Bedrick and
Dr. Scher would testify that the autism diagnosis supported their opinion that Julien suffered
from chronic uteroplacental oxygen insufficiency, resulting in injury before birth. Dr. Scher
would state that from his knowledge, autism spectrum disorder is either “a genetic problem at
conception or acquired or both. And the acquired injury fits into the general uteroplacental
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insufficiency problem because of the areas of the brain that are injured.” It is “one more piece
of evidence” in determining the timing and cause of Julien’s brain injury. Dr. Scher would
opine, to a reasonable degree of medical certainty, that an autism diagnosis “is consistent with
and supportive of my opinion that Julien Florez did not suffer from an acute injury at or around
the time of labor and delivery.” Dr. Scher would testify that in his review of the records, he did
not find a previous confirmed diagnosis of autism. The only references to the disorder came
from school psychologists without objective testing to support it. Without an objective test to
confirm an autism diagnosis, Dr. Scher could not offer an opinion to a reasonable degree of
medical certainty that Julien had autism, nor could autism be a basis of his opinion.
¶ 43 Dr. Hunter would testify that the autism diagnosis “provides a much stronger understanding
of *** [Julien’s] neurodevelopmental profile.” Specifically, that his language deficits do not
reflect an intellectual disability; rather, they reflect “a neurodevelopmental disorder that affects
language.” From his experience working in the area of evaluating children’s cognitive abilities
and assessing their current and future needs, Dr. Hunter would find the autism diagnosis “to
be a critical component to understanding both where Julien is now, *** and what he needs to
actually allow him to be successful.” Dr. Hunter would agree with Dr. Scher that the prior
references to autism in the record did not constitute an actual diagnosis. While
recommendations for formal testing were made, Julien did not undergo such testing, or obtain
an actual diagnosis, until Dr. Young’s evaluation. Until that time, Dr. Hunter “had no data that
would suggest that [autism] had been identified or diagnosed.”
¶ 44 In her offer of proof, Aimee would testify that prior to the family moving to Michigan,
none of Julien’s providers, teachers, or doctors had diagnosed him with autism. Although he
had deficits associated with autism spectrum disorder, he was not diagnosed with the disorder
in Florida. She would confirm that no physicians in Florida indicated to her that Julien may be
autistic and that one physician, Dr. Jeffrey Brosco, told her that Julien was not on the autism
spectrum. Aimee confirmed that Julien now attends a school for autistic children.
¶ 45 Following closing arguments, the jury returned a verdict in favor of plaintiff for $50.3
million. Defendants filed a motion for a new trial, which the trial court denied. The court did
not believe that defendants were “materially prejudiced” by the exclusion of Julien’s autism
diagnosis because “[a]utism doesn’t seem to be material to this case.” It found that autism is
“at best, an alternative. *** Material to me means related to the substance of what your theory
of the defense is. And I just didn’t find that.” This appeal followed.
¶ 46 III. ANALYSIS
¶ 47 Defendants contend that the trial court erred in striking their supplemental disclosures
pursuant to Illinois Supreme Court Rule 213(f) (eff. Jan. 1, 2018) as untimely under Rule
218(c) and excluding any reference to Julien’s autism diagnosis at trial. The issue here is not
simply whether the trial court properly struck defendants’ supplemental answers because they
were filed less than 60 days before trial. The question we must answer is whether Rule 213(i)
and Rule 218(c) allow defendants to file supplemental answers less than 60 days before trial,
where they filed their answers in response to additional information plaintiff himself filed less
than 60 days before trial. See Ill. S. Ct. R. 213(i) (eff. Jan. 1, 2018); R. 218(c) (eff. July 1,
2014). Although the admission of evidence pursuant to Rule 213 lies within the sound
discretion of the trial court (Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109 (2004)),
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interpretation of the supreme court rules is reviewed de novo (Vision Point of Sale, Inc. v.
Haas, 226 Ill. 2d 334, 342 (2007)).
¶ 48 It is well settled that reviewing courts should interpret the rules “in the same manner as
statutes.” Id. When construing a supreme court rule, our primary goal is to ascertain the intent
of the drafters as indicated by the language used, given its plain and ordinary meaning. Ferris,
Thompson & Zweig, Ltd. v. Esposito, 2017 IL 121297, ¶ 22. In making this determination, “a
court must consider the rule in its entirety, keeping in mind the subject it addresses and the
apparent intent of the drafters in enacting it.” Id. We interpret the rules so that no part is
rendered meaningless or superfluous, nor will we depart from the plain language of the rule by
reading into it exceptions, limitations, or conditions that conflict with the expressed intent. Id.
¶ 49 Rule 213(f)(3) provides that, upon written interrogatory, each party must disclose the
subject matter, conclusions, and opinions “and the bases therefor,” of controlled expert
witnesses who will testify at trial. Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2018). The purpose of
Rule 213(f) “is to prevent unfair surprise at trial, without creating an undue burden on the
parties before trial.” Ill. S. Ct. R. 213, Committee Comments (adopted Mar. 28, 2002). The
information disclosed in a Rule 213(f) answer, or in a discovery deposition, “limits the
testimony that can be given by a witness on direct examination at trial.” Ill. S. Ct. R. 213(g)
(eff. Jan. 1, 2018). Each party also has a continuing duty “to seasonably supplement or amend
any prior answer or response whenever new or additional information subsequently becomes
known to that party.” Ill. S. Ct. R. 213(i) (eff. Jan. 1, 2018); Warrender v. Millsop, 304 Ill.
App. 3d 260, 265 (1999). The rule’s disclosure requirements “are mandatory and subject to
strict compliance by the parties.” Sullivan, 209 Ill. 2d at 109.
¶ 50 While Rule 213 provides no specific time limit within which to file supplemental answers,
Rule 218(c) states that the “dates set for the disclosure of witnesses *** and the completion of
discovery shall be chosen to ensure that discovery will be completed not later than 60 days
before the date on which the trial court reasonably anticipates that trial will commence.” Ill. S.
Ct. R. 218(c) (eff. July 1, 2014). Together, Rules 213(f)(3), 213(i), and 218(c) ensure that the
“parties disclose the subject matter, conclusions, opinions, bases, qualifications, and all reports
of a witness who will offer opinion testimony,” no later than 60 days before trial. See Scassifero
v. Glaser, 333 Ill. App. 3d 846, 855 (2002); Gee v. Treece, 365 Ill. App. 3d 1029, 1035-36
(2006).
¶ 51 Rules 213 and 218, however, should “be liberally construed to do substantial justice
between or among the parties.” Ill. S. Ct. R. 213(k) (eff. Jan. 1, 2018); R. 218(c) (eff. July 1,
2014). Accordingly, this court has held that Rule 218(c) does not automatically require the trial
court to bar an expert witness disclosed less than 60 days before trial. Frulla v. Hyatt Corp.,
2018 IL App (1st) 172329, ¶ 27. In Frulla, the trial court set the trial date for March 3, 2017,
and ordered plaintiff to serve supplemental disclosures by November 21, 2016. The order also
set January 5, 2017, as the deadline for defendants’ disclosures. Id. ¶¶ 6-7. Plaintiff, however,
failed to file his supplemental disclosures until December 6, 2016.On January 5, 2017, the trial
court ordered defendants to serve their Rule 213(f)(3) disclosures by January 20, 2017. Plaintiff
objected, arguing that he had not waived the requirement that discovery be completed no later
than 60 days prior to trial. Defendants filed their initial disclosures on January 20, 2017, and
filed an amended disclosure on January 23, 2017. Id. ¶ 8.
¶ 52 On appeal, plaintiff argued that the trial court erred in failing to bar defendants’ expert
witnesses for noncompliance with Rule 218(c). He contended that pursuant to the rule’s 60-
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day requirement, defendants had an “ ‘affirmative duty’ ” to make their Rule 213(f)(3)
disclosures no later than January 3, 2017. Id. ¶ 24.
¶ 53 This court noted that, in November 2016, plaintiff knew that the court set a schedule for
defendants to make their Rule 213 disclosures by January 5, 2017, past the 60-day deadline,
yet “plaintiff stood mute” and did not object. Id. ¶ 25. Furthermore, “[p]laintiff was dilatory in
making his own disclosures,” which necessarily delayed defendants’ disclosures because their
“experts typically would need time to review the discovery from plaintiff’s experts in order to
formulate their opinions and prepare their reports.” Id. ¶ 28. We found it “clear that plaintiff is
attempting to enforce the letter of Rule 218(c) to his advantage without regard to its stated
purpose while ignoring his own counsel’s lack of diligence in providing discovery disclosures
to defendants’ counsel.” Id. ¶ 29. We held that the trial court did not abuse its discretion when
it allowed defendants “to disclose experts less than 60 days before trial in order to do
substantial justice between the parties.” Id. ¶¶ 28-29; see also Gee, 365 Ill. App. 3d at 1038
(finding that “a mechanical application of the 60-day deadline under the circumstances
presented could encourage parties to cause delays which might force opposing parties into a
late disclosure of alternate witnesses, thereby unfairly gaining a tactical advantage”).
¶ 54 As in Frulla, we find that the trial court below should have allowed defendants to file their
supplemental answers in order “to do substantial justice between and among the parties.” See
Ill. S. Ct. R. 218(c) (eff. July 1, 2014). On July 25, 2018, 56 days before trial, plaintiff
supplemented their answers to written discovery with “a copy of the June 25, 2018
Psychological Evaluation for Julien Florez from the Center for Neuropsychology and
Behavioral Health.” The report stated that Dr. Young performed the evaluation on June 25,
2018, and the “[r]esults and recommendations were discussed with Julien’s family” on that
date. On August 9, 2018, two weeks after defendants received the report, they filed their
supplemental answers to plaintiff’s Rule 213(f) interrogatories. Rule 213(i) obligates a party
“to seasonably supplement or amend any prior answer or response whenever new or additional
information subsequently becomes known to that party.” Ill. S. Ct. R. 213(i) (eff. Jan. 1, 2018).
In those answers, defendants’ experts opined that Julien’s autism diagnosis is “one more piece
of evidence” that “is consistent with and supportive of [their] opinion that Julien Florez did not
suffer from an acute injury at or around the time of labor and delivery.” Defendants also filed
a supplemental answer identifying Dr. Young as an expert witness. Plaintiff moved to strike
the supplemental disclosures, arguing that defendants were “trying to inject this new issue into
the case” and that the disclosures were untimely, since they were filed less than 60 days before
trial. The trial court struck defendants’ disclosures, finding that Rule 218(c) required that all
discovery be completed no later than 60 days before trial.
¶ 55 However, we cannot ignore the fact that defendants’ supplemental disclosures in response
to Dr. Young’s evaluation were untimely only because plaintiff filed Dr. Young’s evaluation
less than 60 days before trial. Plaintiff supplemented written discovery as required by the rules,
but they did so 56 days before trial. Defendants’ answers could not comply with Rule 218(c),
even if they had been filed on the same day defendants received Dr. Young’s report.
¶ 56 Nothing in the language of Rule 213(i) or Rule 218(c) indicates an intent to hold the 60-
day limit above all other considerations. Rather, both rules explicitly state that they should be
“liberally construed to do substantial justice” between the parties. Ill. S. Ct. R. 213(k) (eff. Jan.
1, 2018); R. 218(c) (eff. July 1, 2014). Plaintiff seeks “to enforce the letter of Rule 218(c) to
his advantage without regard to its stated purpose,” while ignoring his own actions that
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contributed to defendants’ untimely filing. See Frulla, 2018 IL App (1st) 172329, ¶ 29. Strict
enforcement of Rule 218(c)’s 60-day time limit in this case rendered Rule 213(i) meaningless,
and as a result, defendants’ experts had no way to offer their opinions on Dr. Young’s report
or reference Julien’s autism diagnosis in support of their conclusions. Enforcement of Rule
218(c)’s 60-day time limit here did not “do substantial justice between and among the parties.”
See Ill. S. Ct. R. 218(c) (eff. July 1, 2014).
¶ 57 Furthermore, the purpose of discovery rules “is to eliminate surprise and unfairness” and
afford a fair opportunity to investigate. People v. Sutton, 349 Ill. App. 3d 608, 618-19 (2004).
As our supreme court noted, “[d]iscovery is intended as, and should be, a cooperative
undertaking by counsel and the parties, conducted largely without court intervention, for the
purpose of ascertaining the merits of the case and thus promoting either a fair settlement or a
fair trial.” Williams v. A.E. Staley Manufacturing Co., 83 Ill. 2d 559, 566 (1981). The process
of discovery should not be conducted as a “tactical game.” Zagorski v. Allstate Insurance Co.,
2016 IL App (5th) 140056, ¶ 39.
¶ 58 A mechanical application of Rule 218(c)’s 60-day deadline to defendants under these
circumstances would encourage tactical gamesmanship. Dr. Young conducted her evaluation
and prepared a written report on June 25, 2018. She discussed the results with Julien’s family
that day. Approximately one month later, plaintiff’s counsel was given the report and they filed
it as supplemental discovery on July 25, 2018. While we acknowledge that plaintiff’s counsel
tendered the report as soon as they received it, plaintiff gives no reason why they waited a
month before presenting Dr. Young’s report to their counsel. If plaintiff had supplemented
their discovery after receiving Dr. Young’s report on June 25, 2018, defendants would have
had time to file their supplemental answers before the 60-day deadline. Instead, the one-month
delay left defendants with no opportunity to respond within Rule 218(c)’s 60-day time limit.
¶ 59 After the trial court struck defendants’ supplemental answers and their supplemental
disclosure of Dr. Young as an expert witness as untimely, plaintiff moved to strike any
reference to autism at trial, arguing that “no witness would testify for either party that Julien is
autistic,” and “[n]one of plaintiffs’ or defendants’ experts have offered an opinion—neither in
a discovery deposition nor Rule 213 disclosure—diagnosing Julien Florez with autism.” The
trial court granted the motion. Plaintiff’s actions in filing Dr. Young’s report less than 60 days
before trial, filing motions to strike defendants’ supplemental answers and disclosures as
untimely, and after the trial court granted the motions, filing motion in limine No. 19 to strike
any reference to Julien’s autism at trial, prevented defendants from using the diagnosis as
support for their opinions. We emphasize that, in making our determination, we take no
position on the merits of plaintiff’s case. We determine only that application of the discovery
rules below did not serve their purpose, and condoning such conduct would encourage the
same tactical gamesmanship the rules seek to avoid. Sullivan, 209 Ill. 2d at 109-10.
Accordingly, we find that the trial court abused its discretion in striking the supplemental
answers of defendants’ experts pursuant to Rule 218(c).
¶ 60 Plaintiff argues, however, that it was defendants who engaged in improper gamesmanship
by filing their untimely supplemental answers. Plaintiff insists that he had no intention to use
the report with existing experts and defendants’ late attempt to inject autism into the case was
aimed at surprising plaintiff. Plaintiff maintains that Julien’s autism-associated behaviors were
“well-documented” in his medical records “long before the Young report,” and defendants’
experts could have incorporated autism in their answers well before the 60-day deadline.
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¶ 61 We do not agree that Julien’s autism was “well-documented” in the record. In their offers
of proof, Dr. Hunter and Dr. Scher stated that the prior references to autism in the record did
not constitute an actual diagnosis. While there were recommendations for formal testing, Julien
did not undergo such testing, or obtain an actual diagnosis, until Dr. Young’s evaluation.
Absent Dr. Young’s report, Dr. Hunter stated that he “had no data that would suggest that
[autism] had been identified or diagnosed.” In her offer of proof, Aimee confirmed the lack of
an earlier autism diagnosis. She stated that none of Julien’s providers, teachers, or doctors in
Florida had diagnosed him with autism. Although he had deficits associated with autism
spectrum disorder, no physicians in Florida indicated that Julien may be autistic. In fact, Dr.
Brosco told Aimee that Julien was not on the autism spectrum.
¶ 62 We also disagree that defendants filed the supplemental disclosures in an attempt to
surprise plaintiff shortly before trial. As discussed above, plaintiff filed Dr. Young’s report less
than 60 days before trial. When defendants received the documents showing a professional
diagnosis of autism spectrum disorder for the first time, they filed their experts’ supplemental
answers two weeks later, on August 9, 2018. Their supplemental answers did not disclose a
completely new theory of causation that would have surprised plaintiff. Rather, defendants
experts would opine that the diagnosis is “consistent with and supportive of [their] opinion that
Julien Florez did not suffer from an acute injury at or around the time of labor and delivery.”
We adhere to our holding that the trial court should have allowed defendants to file their
supplemental answers pursuant to Rule 213(i).
¶ 63 Errors in the exclusion of expert testimony warrant a new trial if they are “serious and
prejudicial.” Ayala v. Murad, 367 Ill. App. 3d 591, 601 (2006); see also Fakes v. Eloy, 2014
IL App (4th) 121100, ¶ 75 (a new trial is warranted if the Rule 213 violation deprived the party
of a fair trial, and that party demonstrates resulting prejudice). The trial court’s denial of a
motion for a new trial is reviewed under an abuse of discretion standard. Graham v.
Northwestern Memorial Hospital, 2012 IL App (1st) 102609, ¶ 39.
¶ 64 “In any negligence action, the plaintiff bears the burden of proving not only duty and breach
of duty, but also that defendant proximately caused plaintiff’s injury.” Leonardi v. Loyola
University of Chicago, 168 Ill. 2d 83, 93 (1995). Although the burden is on plaintiff to show
proximate cause, if defendants have “evidence that negates causation” they “should [be able
to] show it.” Id. at 93-94.
¶ 65 Here, the critical issue before the jury was whether Julien’s brain injury was proximately
caused by defendants at or near the time of his birth or by other factors that have no connection
to the circumstances of his birth. This was a vigorously contested case, with knowledgeable
experts on one side giving scientific testimony that conflicted with the opinions of
knowledgeable experts on the other side. Defendants’ experts testified in their offers of proof
that a diagnosis of autism, a brain disorder, would have supported their opinion that Julien
suffered from chronic uteroplacental oxygen insufficiency, resulting in brain injury before
birth. Dr. Hunter would testify that the autism diagnosis “provides a much stronger
understanding of *** [Julien’s] neurodevelopmental profile.” Specifically, he would find that
Julien’s language deficits do not reflect an intellectual disability; rather, they reflect “a
neurodevelopmental disorder that affects language.”
¶ 66 According to defendants’ experts, an autism diagnosis provides “one more piece of
evidence” in support of their theory that Julien’s brain damage was caused by a chronic
condition and not by the circumstances of his birth. As such, Julien’s diagnosis was material
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and relevant to the issue of causation. See Smith v. Silver Cross Hospital, 339 Ill. App. 3d 67,
73-74 (2003) (stating that relevant evidence has the “ ‘tendency to make the existence of any
fact that is of consequence to the determination of the action more or less probable than it
would be without the evidence’ ”).
¶ 67 Plaintiff contends that a new trial is unwarranted because the exclusion of autism evidence
did not prejudice defendants. He argues that the evidence at trial overwhelmingly favored
plaintiff because “[t]he only logical and reasonable conclusion *** is that Julien sustained a
significant neurologic injury at or near the time of delivery leaving him with profound and
permanent deficits.” We disagree. Evidence on the core issue of causation consisted primarily
of expert testimony. The jury assigns weight to an expert’s opinion in light of the expert’s
credentials and the factual basis of his or her opinion. Snelson v. Kamm, 204 Ill. 2d 1, 27
(2003). While the jury found in favor of plaintiff, thus giving more weight to the testimony of
plaintiff’s experts, we cannot say to what extent the jury discounted the testimony of
defendants’ experts. Both parties presented qualified and experienced experts, and we find
nothing in the record that would cause the jury to completely disregard the testimony of
defendants’ experts.
¶ 68 The jury heard extensive expert testimony on both sides that led to conflicting opinions as
to the cause of Julien’s brain injury. Defendants’ experts would have used Julien’s autism
diagnosis as further support for their opinion that his brain injury resulted from a chronic
condition, in a case where both sides presented ample medical evidence for their positions. It
was the jury’s function to resolve the conflicting expert opinions and determine the cause of
Julien’s brain injury (Vanderhoof v. Berk, 2015 IL App (1st) 132927, ¶ 64), and it was deprived
of relevant evidence in making those determinations.
¶ 69 Exclusion of Julien’s autism diagnosis also prejudiced defendants in the jury’s assessment
of damages. Defendants are only liable for the portion of damages resulting from injuries
caused by them. Voykin v. Estate of DeBoer, 192 Ill. 2d 49, 58 (2000). Therefore, even if the
jury had found that autism had nothing to do with the brain injury caused by defendants, autism
may still be relevant to the question of damages. Autism spectrum disorder may be relevant to,
among other things, Julien’s speech and language deficits, his need for therapy, his schooling
requirements, and his future employment prospects. Damages calculations included the costs
of therapy and schooling and the loss of future earnings, but defendants were prevented from
establishing whether Julien’s autism diagnosis would reduce their damages. Under these facts,
we find that exclusion of Julien’s autism diagnosis deprived the jury of relevant evidence on
the issues of causation and damages and that defendants were prejudiced as a result.
¶ 70 Due to our findings above, we need not address plaintiff’s argument that defendants were
required to seek leave of court pursuant to Illinois Supreme Court Rule 183 (eff. Feb. 16, 2011)
before filing their untimely answers or defendants’ argument that opposing counsel’s remarks
during closing argument constituted reversible error.
¶ 71 IV. CONCLUSION
¶ 72 For the foregoing reasons, we reverse the judgment entered against defendants and remand
for a new trial.
¶ 73 Reversed and remanded.
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